Wechsler v. Wayne County Road Com'n
| Decision Date | 27 February 1996 |
| Docket Number | Docket No. 165519 |
| Citation | 546 N.W.2d 690,215 Mich.App. 579 |
| Parties | Louis WECHSLER, Personal Representative of the Estate of Ralph Andrew Johnson, and Patty Johnson, Plaintiffs-Appellees, v. WAYNE COUNTY ROAD COMMISSION, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Mark Granzotto, Detroit, Robert L. Hamburger and Stephen M. Taylor, Farmington Hills, for plaintiffs.
Jennifer M. Granholm, Corporation Counsel, and Ellen E. Mason, Assistant Corporation Counsel, for defendant.
Before MARKMAN, P.J., and WAHLS and MESTER, * JJ.
Plaintiffs filed a negligence action, asserting that defendant failed in its duty to maintain a highway "in reasonable repair so that it is reasonably safe and convenient for public travel." M.C.L. § 691.1402; M.S.A. § 3.996(102). The case was tried to the bench in the Wayne Circuit Court, which granted judgment in favor of plaintiffs. We reverse. 1
Most of the material facts are undisputed. The plaintiffs' decedent, Ralph Andrew Johnson, was on his way home from Detroit Metropolitan Airport, driving his automobile east on Wick-Gratiot Road, intending to make a left turn at the intersection with Middlebelt Road. Traffic at the intersection was heavy and Johnson had to wait through four or five changes of the light to reach the front of the line of vehicles turning left. Originally, ten to twelve vehicles had been ahead of him and all made left turns without incident.
The intersection in question is governed by an ordinary traffic light; there is no special signal for cars turning left from eastbound Wick-Gratiot onto Middlebelt. Wick-Gratiot is a four-lane road with two lanes in each direction.
The cars ahead of Johnson had apparently negotiated their left turns when the traffic signal was yellow. Because of the heavy traffic, there were insufficient spaces between vehicles going west on Wick-Gratiot to permit left turns when the signal was green. However, when the signal was yellow, the westbound cars would usually stop, allowing one or two eastbound vehicles to then complete a left turn onto Middlebelt.
In making his left turn, Johnson's vehicle collided head-on with a Dodge cargo van driven by Ronnie Raymond. The accident occurred at approximately 7:30 p.m. on September 29, 1988. Sunset had occurred eleven minutes earlier, at 7:19 p.m. Moonrise was not due to occur until 9:18 p.m. There was no precipitation, or any indication of other adverse weather conditions (Detroit Free Press, September 29 and September 30, 1988, page 2A).
In consequence of the collision, Ralph Johnson was seriously injured, necessitating a succession of surgeries that, because of Johnson's already debilitated physical condition, eventually led to his death from heart failure. Johnson's wife, Patty, sued for loss of consortium and there are no legal issues regarding her claim that are not derivative of the claim made by Ralph Johnson. Accordingly, the remainder of this opinion will treat only the claim on behalf of decedent Ralph Johnson. Oldani v. Lieberman, 144 Mich.App. 642, 646, 375 N.W.2d 778 (1985).
A disputed fact concerns the manner in which the accident occurred. Ronnie Raymond testified that he was proceeding west on Wick-Gratiot Road when Ralph Johnson suddenly turned in front of him and that Raymond had insufficient reaction time to avoid the resulting collision. For his part, Johnson did not recall what occurred after he reached the front of the line of cars waiting to turn left from Wick-Gratiot onto Middlebelt, but several independent witnesses testified that it was not Johnson's vehicle, but rather Raymond's, that crossed the center line immediately before the collision. Decedent testified that he was unable to see approaching traffic clearly because there was a tractor-trailer opposite him and that he initiated his left turn only when the traffic signal turned red. 2
Plaintiffs' liability theory is predicated on the notion that the intersection is defective because there is no left-turn lane and no left-turn signal that would permit drivers on Wick-Gratiot Road to make a left turn while all other traffic is stopped.
The trier of fact adopted the testimony of traffic engineers who suggested that the addition of a left-turn phase to the traffic signal would reduce the accident rate at such intersections by fifty-six percent and that, according to generally accepted criteria, this intersection should have been designated by the Wayne County Road Commission as meeting the threshold for installation of such a signal. The trier of fact further concluded that plaintiffs met their burden of establishing that the highway was not reasonably safe and fit for public travel, that defendant knew or should have known of this condition, and that this condition was the proximate cause of the accident and the resulting injuries and damages suffered by plaintiffs. The trier of fact, however, did not resolve precisely how the accident occurred, that is, whether Mr. Raymond's version of the accident was correct as opposed to that of the independent witnesses.
We find the issue of governmental immunity dispositive, reverse the trial court's judgment, and remand for entry of an order dismissing the action.
A threshold issue concerns plaintiffs' claim that the defense of no actionable duty (governmental immunity) was not preserved, because defendant did not raise the defenses of lack of duty or governmental immunity below. The record contradicts this assertion. On October 17, 1990, Wayne County filed its timely answer and affirmative defenses to plaintiffs' complaint. Affirmative defense number eleven asserts: "Defendant is immune by operation of the doctrine of governmental immunity." This fulfilled defendant's obligation to plead governmental immunity as an affirmative defense. Patterson v. Kleiman, 199 Mich.App. 191, 500 N.W.2d 761 (1993), aff'd but modified on other grounds, 447 Mich. 429, 526 N.W.2d 879 (1994). 3
The highway exception to governmental immunity, M.C.L. § 691.1402; M.S.A. § 3.996(102), provides in pertinent part that "[e]ach governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel." In finding that the defendant road commission could be held liable for plaintiffs' damages, the trial court adopted the suggestion made in expert testimony that a left-turn lane, a left-turn signal, or both should have been installed at this intersection. As we will explain later in this opinion, an agency's statutory duty may include the installation of suitable traffic-control signals and signs. However, we find that the trial court erred as a matter of law in determining that defendant had a duty to install a left-turn lane because such installation is not encompassed within the plain language of M.C.L. § 691.1402; M.S.A. § 3.996(102).
The statute requires that the authority "having jurisdiction of a highway shall maintain the highway in reasonable repair." M.C.L. § 691.1402(2); M.S.A. § 3.996(102)(2) (emphasis supplied). The verb "maintain" is not a legal term of art but rather an ordinary English word that, in this context, denotes "to keep in a state of repair, efficiency, or validity; to preserve from failure or decline." Webster's Third New International Dictionary, Unabridged Edition, p 1362 (1965). The salient fact about this definition is that it is distinct from the concept of "improve," "augment," or "expand."
The Legislature thus did not purport to demand of governmental agencies having jurisdiction of highways that they improve or enhance existing highways, as by widening existing lanes or banking existing curves; that they augment existing highways, as by adding left-turn lanes; or that existing highways be expanded, as by adding new travel lanes or extending a highway into new territory. The only statutory requirement and the only mandate that, if ignored, can form the basis for tort liability is to "maintain" the highway in reasonable repair.
Thus, this Court has previously recognized that highway authorities are under no statutory obligation to reconstruct a highway whenever some technological safety advancement has been developed. Rather, the focus of the highway exception is on maintaining what has already been built in a state of reasonable repair so as to be reasonably safe and fit for public vehicular travel. Hall v. Dep't of State Hwys, 109 Mich.App. 592, 605, 311 N.W.2d 813 (1981).
No case authority and no statutory language supports the concept that failure to construct additional lanes of traffic can provide a basis for imposing liability on a governmental agency having jurisdiction over a highway. Rather, the contrary is the rule. Id. Whether to build a highway in the first instance, or whether to expand an existing highway, is a political determination, the power to make which has not been delegated by the immunity statute or its highway exception to triers of fact in civil litigation. 4
A construction of the governmental immunity statute that purports to recognize such a transfer of power would give rise to serious constitutional problems under Const.1963, art. 9, § 2, which provides that "the power of taxation shall never be surrendered, suspended, or contracted away." If Wayne County can be required by the judiciary to construct a left-turn lane at the Wick-Gratiot/Middlebelt intersection, the Department of Transportation can equally be compelled to expand I-96 to six lanes along its entire length in order to relieve potential traffic congestion that may cause impatient motorists to rashly seek nonexistent openings on the roadway, resulting...
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